On-Reservation Treaty Hunting Rights: Abrogation v. Regulation by Federal Conservation Statutes - What Standard
Year: 1986
Type: article
Abstract: 1. Bald Eagle Protection Act, 16 U.S.C. § § 668-668(d) (1982).2. The treaty defense requires three findings by the court.First, a treaty right to hunt on the reservation must be found.Second, the Indian defendant must have acted within the scope of a tribal treaty right.To fall within the scope of a treaty right, the defendant must be a member of the tribe and his actions occur on the reservation.Third, the court must determine the treaty right has not been abrogated.If abrogation is not found, the defendant may successfully use the treaty right as a shield against criminal prosecution.United States v. Dion, 752 F.2d 1261, 1263 (8th Cir.1985), cert.granted, 54 U.S.L.W. 3252 (U.S. Oct. 15, 1985) (No. 85-246).See United States v. White, 508 F.2d 453 (8th Cir.1974).3.In Dion, 752 F.2d 1261 (8th Cir.1985), the court expanded the treaty defense to shield against taking prohibitions charged under the Endangered Species Act of 1973, 16 U.S.C. § § 1531-1543 (1982).4. See, e.g., United States v. Dion, 752 F.2d 1261 (8th Cir.1985); United States v. White, 509 F.2d 453 (8th Cir.1974); United States v. Fryberg, 622 F.2d 1010 (9th Cir.1980).5. The exercise of Congress' plenary power over Indians was deemed a political issue, not subject to judicial review.Lone Wolf v. Hitchcock, 187 U.S. 533 (1903).However, nonreviewability was later rejected in United States v. Sioux Nation, 448 U.S. 371 (1980).The Court held congressional power to control Indian affairs is not absolute.The power is subject to guardianship and constitutional limits.Id. at 415.
Author: Walker, Jana L.
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7052444258